Great expectations

GREAT expectations may just be the phrase to describe the hope of many Malaysians for the proposed Environmental Protection Bill. What with all the disasters such as landslides that have been happening in Penang, and, elsewhere, too. Are we being too hopeful? Natural Resources and Environment Minister Datuk Seri Dr Wan Junaidi Tuanku Jaafar has certainly raised our expectations. He told the New Sunday Times that the new law would have more bite than it did under the Environmental Quality Act 1974. Take the case of the environmental impact assessment (EIA) guidelines, which were at the centre of the Penang landslide controversy. Under the new regime, the Department of Environment’s (DoE) EIA guidelines will moult from being recommendatory to mandatory. A giant leap, one must admit. But here is the catch. Malaysia’s Federal Constitution gives the states substantial powers over land use and natural resources management. The federal-state relationship is a complicated relationship, even without adding the complex environmental regime to the picture. It can, at times, confound and confuse. We saw this in full play in the Tanjung Bungah tragedy, leaving many laymen wondering about the clout of DoE. Many asked: can Penang overrule DoE’s advice? It certainly can under the Federal Constitution. So, how is this new bill going to circumvent this? We do not want to put the cart before the horse, but this may not happen unless the states relinquish control to the federal authorities. Only states which love the environment and the future generation will do this. This is a moral bite, at best.

We do not want to take away the credit due to the ministry and its agencies to make the law march with the times, but they have other challenges to face as well. A huge challenge is the implementation and enforcement of the regulatory regime itself. Laws upon rules upon administrative guidelines to be implemented by multiple government agencies do not make enforcement any easier. The new law must ensure that there is little overlap, and, no cracks through which environmental issues will fall and disappear. Lawyers say we have an impressive set of environmental laws, but it is in their enforcement that we lose some stars. One way to test this view of the lawyers is to reach out for the law reports. Compared with cases reported on other matters, law reports on environmental cases are sparse, and, bound in thin volumes. Enforcers and interested parties have very little guidance in terms of cases as precedents.

Civil society and environmentalists may also want to see changes in the law to enable public-spirited litigants to institute actions without being burdened with the strict rules of “locus standi”. Existing decisions do not help us on this issue as the courts have been rather inconsistent, and, restrictive, too. Public-spirited people must be encouraged to litigate, and, the only way to do this is for the new law to define the rule of legal standing in a generous way. This is one of the great expectations.